Judgment

PALEKAR, J.:- This appeal by special leave arises in the following circumstances.

2. Plaintiff (Respondent No. 1) filed Civil Suit No. 35 of 1963 against one B. N. Chatterji in the court of Munsif, Ajmer City, for ejectment from the first floor of the house known as "Krishna Bhawan". The ejectment was sought on the ground that the plaintiff required the house bona fide for the residence of himself and his family. B. N. Chatterji - the defendant, contested the suit and alleged that the landlord did not require the premises bona fide. The learned Munsif by judgment dated January 17, 1964 held in favour of the landlord and decreed the suit for ejectment. From that decree the tenant filed Civil Appeal No. 59/1964 in the court of the District Judge Ajmer. The learned Judge held that the landlord did not require the premises reasonably and bona fide and allowed the appeal and dismissed the suit.

3. Thereupon the landlord filed second appeal No. 390/1965 in the Rajasthan High Court. During the pendency of the appeal, the tenant B. N. Chatterji died on 31-7-1967 and his widow and children were brought on record as his heirs and legal representatives. The widow Kalyani Devi died on 24-6-1969 and her heirs are the legal representatives - already on record. When the appeal came before a single Judge of the High Court for hearing the landlord, who was the appellant in the second appeal, sought the permission of the court to urge the following point.

"That the respondent (original tenant B. N. Chatterji) died after the filing of this appeal. That the deceased after the determination of the tenancy was only a statutory tenant and under the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 the protection granted by Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act is not available to the heirs of the tenant. As such, even if it be held that the landlord has failed to prove the reasonable and bona fide requirement, which the appellant does not concede, the appellant is entitled to a decree in pursuance of the decision of a division bench of this High Court passed on 7-4-1966 in Special Appeal No. 3 of 1965".

4. The learned Judge allowed the point to be urged and came to the conclusion that it was not necessary to go into the question of bona fide and reasonable necessity of the landlord as that was only a protection provided to the statutory tenant personally under Section 13 of the Act of 1950. Since the tenancy had been duly terminated by notice and there was no other bar to the passing of the decree in favour of the landlord the learned Judge set aside the Order of the District Court and restored the decree passed by the Munsif.

5-6. It was contended before us that the term tenant in Section 3 (vii) of the Act referred to above included, on a proper construction, the heirs of a tenant and, therefore, they were entitled in their own right to urge that the landlord did not require the premises reasonably and bona fide. On the other had, if they were not tenants, it was not longer open to pass a decree of eviction against them and, if necessary, the plaintiff should be referred to a separate suit. In any case it was contended, in view of the new point urged at the time of the hearing, the High Court should have remanded the case for the determination of the question whether the contractual tenancy was validly terminated and whether by acceptance of rent from the legal representatives during litigation the heirs and the legal representatives had not been constituted tenants .

7. In our opinion there is no substance in this appeal. The original tenant of the premises was B. N. Chatterji. The landlord had alleged in the suit that by a notice dated 26-6-1962 served upon the tenant, the tenancy had been duly terminated. This was not denied in the written statement nor was an issue demanded at the time of the trial. However, the point being essentially a point of law, the learned Judge in second appeal permitted b